U.S. Supreme Court to Review Cross-State Air Pollution Rule

WASHINGTON, DC, June 24, 2013 (ENS) – The U.S. Supreme Court today indicated it will review an appeals court rejection of the U.S. EPA’s Cross-State Air Pollution Rule, which sets limits for emissions from coal-fired power plants that move across state lines, polluting the air of downwind states.

The D.C. Circuit Court of Appeals’ overturned the Cross-State Air Pollution Rule last August in the case of EME Homer City Generation v. EPA. That case concerned emissions from the coal-fired Homer City Generating Station in southwestern Pennsylvania owned by General Electric and operated by NRG. The stack on Homer City-3 is the tallest on any power station in the country at 1,216 feet, so its emissions rise high into the atmosphere and travel far and wide.

“This is welcome news for the millions of Americans afflicted by harmful air pollution from power plants,” said Vickie Patton, general counsel with the nonprofit Environmental Defense Fund, one of the organizations that petitioned the highest court for its review of the appeals court decsion.

“The Cross State Rule is firmly anchored in science and law, and will ensure healthier and longer lives for 240 million Americans. We look forward to presenting this compelling case for clean air to the high court,” Patton said.

On July 6, 2011, the U.S. EPA issued the Cross-State Air Pollution Rule under the “good neighbor” provision of the Clean Air Act, which is intended to ensure that the emissions from one state’s power plants do not cause harmful pollution levels in neighboring states.

The rule would reduce the sulfur dioxide and oxides of nitrogen pollution emitted from coal-fired power plants across 28 eastern states. Those emissions, and the resulting particulate pollution and ozone, usually called soot and smog, drift across the borders of those states and contribute to higher levels of pollution in downwind states.

The EPA says the Cross-State Air Pollution Rule “will protect communities that are home to 240 million Americans from smog and soot pollution, preventing up to 34,000 premature deaths, 15,000 nonfatal heart attacks, 19,000 cases of acute bronchitis, 400,000 cases of aggravated asthma, and 1.8 million sick days a year beginning in 2014 – achieving up to $280 billion in annual health benefits.”

The Cross-State Air Pollution Rule replaces and strengthens the 2005 Clean Air Interstate Rule, CAIR, which the U.S. Court of Appeals for the D.C. Circuit ordered EPA to revise in 2008. The court allowed CAIR to remain in place temporarily while EPA worked to finalize a replacement rule.

If the Cross-State Air Pollution Rule is approved by the Supreme Court, the 28 eastern states, advised by the U.S. EPA, will work with power plants to cut air pollution using what the EPA calls “widely available, proven and cost-effective control technologies.”

“No community should have to bear the burden of another community’s polluters, or be powerless to prevent air pollution that leads to asthma, heart attacks and other harmful illnesses,” said former EPA Administrator Lisa Jackson, introducing the rule in July 2011.

“By maximizing flexibility and leveraging existing technology, the Cross-State Air Pollution Rule will help ensure that American families aren’t suffering the consequences of pollution generated far from home, while allowing states to decide how best to decrease dangerous air pollution in the most cost effective way,” Jackson said.

The Cross-State Air Pollution Rule is intended to improve air quality by cutting SO2 and NOx emissions that contribute to pollution problems in other states.

In its ruling, the D.C. Court of Appeals explained that Congress set up a “federalism-based system of air pollution control,” giving roles to both the federal government and the states. “The Federal Government sets air quality standards for pollutants. The States have the primary responsibility for determining how to meet those standards and regulating sources within their borders.”

Writing for the majority of the three-judge panel, Judge Brett Kavanaugh, wrote, “of primary relevance here, upwind States must prevent sources within their borders from emitting federally determined “amounts” of pollution that travel across State lines and “contribute significantly” to a downwind State’s “nonattainment” of federal air quality standards. That requirement is sometimes called the ‘good neighbor’ provision.”

“First, the statutory text grants EPA authority to require upwind States to reduce only their own significant contributions to a downwind State’s nonattainment. But under the Transport Rule, upwind States may be required to reduce emissions by more than their own significant contributions to a downwind State’s nonattainment.”

“EPA has used the good neighbor provision to impose massive emissions reduction requirements on upwind States without regard to the limits imposed by the statutory text. Whatever its merits as a policy matter, EPA’s Transport Rule violates the statute,” the appellate judge ruled.

“Second,” wrote Judge Kavanaugh, “the Clean Air Act affords States the initial opportunity to implement reductions required by EPA under the good neighbor provision. But here, when EPA quantified States’ good neighbor obligations, it did not allow the States the initial opportunity to implement the required reductions with respect to sources within their borders.”

“Instead,” he wrote, “EPA quantified States’ good neighbor obligations and simultaneously set forth EPA-designed Federal Implementation Plans, or FIPs, to implement those obligations at the State level. By doing so, EPA departed from its consistent prior approach to implementing the good neighbor provision and violated the Act. For each of those two independent reasons, EPA’s Transport Rule violates federal law. Therefore, the Rule must be vacated.”

“Congress could well decide to alter the statute to permit or require EPA’s preferred approach to the good neighbor issue. Unless and until Congress does so, we must apply and enforce the statute as it’s now written. Our decision today should not be interpreted as a comment on the wisdom or policy merits of EPA’s
Transport Rule. It is not our job to set environmental policy. Our limited but important role is to independently ensure that the agency stays within the boundaries Congress has set. EPA did not do so here,” wrote Judge Kavanaugh.

The federal government asked the Supreme Court to review the EME Homer City decision, as did Environmental Defense Fund, the American Lung Association, the Clean Air Council, Natural Resources Defense Council, and the Sierra Club.

Other parties filed briefs in support of EPA’s request, including numerous states and cities that are adversely affected by interstate pollution, and two major power companies.